ELR Citation: ELR 20427
No(s). 84-5390 (3d Cir. Apr 24, 1985)

The court rules that under §505(b)(1) of the Federal Water Pollution Control Act (FWPCA), an Environmental Protection Agency (EPA) administrative enforcement proceeding is not a "court" action barring commencement of a citizen enforcement suit. Applying its analysis in an earlier case under the citizen suit provision of the Clean Air Act, the court first rejects the district court's holding that administrative enforcement was not preclusive solely because citizen plaintiffs had been denied an opportunity to participate in EPA's settlement negotiations with defendant. Whether the administrative enforcement procedures are open to citizen participation is just one of several factors to be considered. Before an agency proceeding can be accorded court status, the agency's administrative enforcement powers and procedures must each be analyzed. Comparing EPA's administrative and judicial enforcement powers under the FWPCA, the court finds that the former are significantly limited, because the agency has no authority to directly enforce its administrative orders and cannot levy administrative civil penalties. In contrast, the Act empowers federal district courts to compel compliance and to impose penalties of up to $10,000 per day. The court also rules that the procedures of EPA administrative enforcement fall short of court action. Citizens may not intervene as of right in administrative actions, while §505 gives them the right in enforcement suits. The administrative process is entirely informal, with no independent decisionmaker, hearings, witnesses, or records. Having concluded that administrative enforcement is not the equivalent of a court action, the court declines to address whether the EPA action in this case was dilligently prosecuted under the terms of §505.

[The opinion below appears at 14 ELR 20450.]

Counsel for Appellant
Sara Boyd Goodman, Joseph E. Irenas
McCarter & English
550 Broad St., Newark NJ 01702
(201) 622-4444

Bruce A. Terris, Carolyn A. Smith
Terris & Sunderland
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Appellee
Michael Gordon
Gordon & Gordon
80 Main St., West Orange NJ 07052
(201) 736-0094

Counsel for Amicus Curiae
Nancy Firestone, Karen L. Florini
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Before Higginbotham and McGlynn,^* JJ.